Unmasking the Beauty of an Enforceable Pro Bono Obligation

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During this continuing pandemic, we have seen people from all walks of life rise to the occasion and contribute their time and efforts to noble causes. Our health care workers are burning the candle at both ends. Our teachers are setting foot in schools daily to educate children who remain unvaccinated. The list goes on and on.

Amidst the noteworthy contributions being made by many of our fellow citizens, as we emerge from the depths of the pandemic this author is compelled to take a detour from my traditional focus (the practice of family law) to question how, if at all, the role of the lawyer—when it comes to trying to facilitate equal access to justice—is in need of improvement.

While we ordinarily refer to lawyers as officers of the court with certain obligations that come with that role, there is one component of that role which remains not only unclear, but in a post-pandemic world, somewhat underwhelming at best. I’m talking about the role that lawyers have, or should have, when it comes to pro bono service.

Rule 6.1 of the New York Rules of Professional Conduct provides that lawyers are “strongly” encouraged to provide pro bono legal services. Specifically, the Rule states that “every” lawyer “should aspire” to provide at least 50 hours of pro bono legal services every year to “poor persons.” Lawyers should indeed aspire to do many things, however the encouragement, on paper, of an aspiration leaves more to be desired.

This author does not recall the words “pro bono” being uttered in law school. If those words were uttered, they were dwarfed by the seemingly unending amount of time spent discussing International Shoe Co. v. Washington, a Supreme Court case that I have never encountered in all my years of practice.

The suggested aspiration in Rule 6.1 is precisely the type of mixed message that I received when I commenced employment straight out of law school. Attorneys were encouraged to do pro bono work, but not required to do it. The message was never crystal clear: Was pro bono work something attorneys in the private sector should do, consider doing, or something else? It is that mixed message which opens the door to an unfortunate outcome: Lawyers who do not incorporate pro bono work into their practices.

When you are told that part of what it means to be a lawyer is to view pro bono work as a duty, as opposed to “charity”—a deeply unfortunate label that, based on the literature that exists on this subject, continues to prevail—you begin to appreciate the value of pro bono service in a more meaningful way.

In 2012, then Chief Judge of the New York Court of Appeals, the Honorable Jonathan Lippman, announced that New York would be the first state to require bar applicants to complete 50 hours of pro bono service as a prerequisite to bar admission. Judge Lippman explained: “If pro bono is a core value of our profession, and it is—and if we aspire for all practicing attorneys to devote a meaningful portion of their time to public service, and they should—these ideals ought to be instilled from the start, when one first aspires to be a member of the profession.”

In my professional home, pro bono work is mandatory. The instruction that pro bono work is required, versus suggested, has been a breath of fresh air. I have been working with Kathy Ochroch, Esq. and Krystal Kane, Esq. to continue to facilitate the growth of my professional, pro bono relationship with The Veterans Consortium, thereby incorporating military discharge upgrade matters into my practice. Needless to say, the work is profoundly meaningful.

Attorneys in New York are required to fulfill certain continuing legal education thresholds in order to maintain themselves in good standing with the Bar. They are not, however, required to incorporate equal access to justice into their practices.

U.S. Supreme Court Justice Sonia Sotomayor said in 2016 that she believed in “forced labor” when it came to equal access to justice. Justice Sotomayor said: “If I had my way, I would make pro bono service a requirement.” Speaking on the identity of the attorney as it relates to pro bono service, she went on to explain that pro bono work “has to become part of their being.”

While much of my pro bono hours are spent on weekends and nights, it is of no moment. After what we have collectively been through the last year and a  half, if lawyers are still questioning when they will find the time to do pro bono work, then we haven’t been paying attention to the need to pay it forward as we hopefully step out of this pandemic world. The academic opposition to Justice Sotomayor’s comments as somehow endorsing involuntary servitude is antiquated at best as we approach the year 2022.

The real question now is whether or not Judge Lippman’s vision will be applied to practicing lawyers. Perhaps it is high time we begin to clean the dust off of Rule 6.1 and redefine what it means to be an officer of the court.

“Unmasking the Beauty of an Enforceable Pro Bono Obligation,” by Alan Feigenbaum was published in the New York Law Journal on November 23, 2021. Reprinted with permission.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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